Western Union Telegraph Co. v. Morrow

• Decision Date: 08 January 1919
• Docket Number: (No. 1445.)
• Parties: WESTERN UNION TELEGRAPH CO. v. MORROW et al.
• Court: Texas Court of Appeals

208 S.W. 689

WESTERN UNION TELEGRAPH CO. v. MORROW et al.

(No. 1445.)

Court of Civil Appeals of Texas. Amarillo.

January 8, 1919.

Rehearing Denied February 5, 1919.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Action by Dora Morrow and another and Lillie C. Kelley and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Veale & Lumpkin, of Amarillo (Albert T. Benedict, of New York, of counsel), for appellant.

Small & Mahan, of Wellington, and Fires & Diggs, of Childress, for appellees.

HALL, J.

Mrs. Dora Morrow, joined by her husband, R. E. Morrow, and Mrs. Lillie C. Kelley, joined by her husband, F. P. Kelley, appellees, instituted this suit in the district court of Collingsworth county against appellant, to recover in behalf of Mrs. Morrow and Mrs. Kelley $1,450 each, and the sum of 50 cents additional, which they alleged was the price paid for the transmission of the telegram. It is alleged that F. F. Foster, a brother of appellees, Mesdames Morrow and Kelley, residing at Waelder, Tex., delivered to appellant at said place the following message:

"Waelder, Texas, December 5, 1916, 9:35 A. M. R. E. Morrow, Wellington, Texas. Father much worse. Dora and Lillie come at once. F. F. Foster."

It is alleged: That, at the time said message was delivered to appellant's operator, said Foster informed the operator that W. H. Foster, his father, was then in a critical condition and was not expected to live more than a few hours, and that his daughters mentioned in the telegram, when apprised of this fact, would at once come to Waelder to be with their father during his illness and to attend the funeral in the event of his death. That by reason of the negligence and carelessness of appellant said message was never transmitted to Wellington, and as a direct and proximate result of such negligence they were deprived of the opportunity of being at their father's funeral. That had the message been properly transmitted and delivered they could and would have gone to Waelder, viewed his remains, and attended his funeral. Appellants answered that the message was sent under the terms of a special contract limiting the liability of appellant for its negligence; that the message was an interstate message, and was therefore governed by the Interstate Commerce Act approved June 18, 1910 (36 Stat. 539, c. 309). The case was submitted to the jury upon special issues, resulting in a judgment in favor of each of the appellees, Mesdames Morrow and Kelley, in the sum of $530.

The first assignment is that the court erred in overruling and not sustaining the appellant's exception to the petition upon the ground that it appeared therefrom that there is a misjoinder of parties plaintiff, for that it appears that each plaintiff has an independent cause of action against the defendant in no sense joint. Under this assignment it is insisted that any right of action accruing to Mrs. Morrow by reason of the negligence of appellant was a personal one, in which Mrs. Kelley had no interest and that Mrs. Kelley's right of action was likewise separate and distinct from that asserted by Mrs. Morrow. Appellant relies upon the case of Western Union Telegraph Co. v. Campbell, 36 Tex. Civ. App. 276, 81 S. W. 580, and Anderson v. Western Union Telegraph Co., 84 Tex. 17, 19 S. W. 285, to sustain its contention. In the Campbell Case it appears that R. P. Watson and his daughter Mrs. Minnie Campbell, before leaving Shreveport, La., wired the husband of Mrs. Campbell at Garrison, Tex., as follows: "Meet Minnie and self at train to-night." The telegram was never delivered to Campbell, who had left his own residence in the town of Garrison and gone to his father's residence about a mile and a half away to spend the night. It is alleged that a heavy rain fell in Garrison, causing the streets to be muddy, and that Mrs. Campbell and Watson were compelled to walk 250 yards from the depot to the Campbell residence, which they found locked, and they were forced to return through the mud and chill of the night air to a hotel. Damages in the sum of $950 were claimed for Mrs. Campbell, who it is alleged got her feet wet and caught a severe cold. Claim was made for Watson for $1, hotel fare, and 25 cents, paid for the telegram, and $25 additional damages. There was a judgment in favor of Mr. and Mrs. Campbell for $200 and in favor of Mr. Watson for 25 cents. Neill, Justice, said:

"Mr. Watson's cause of action is separate and distinct from that of his coplaintiffs, and was therefore improperly joined with theirs."

The case as reported does not inform us of the nature of Watson's claim, except as to the hotel bill of $1, and 25 cents for transmitting the telegram. The issue of mental anguish is not in the case. The claim of Campbell and wife is based upon the injury to Mrs. Campbell's health, but Watson seems to have made no such claim. In such a case the holding of Judge Neill may have been proper, but we doubt if such would have been the holding had rule 62a (149 S. W. x) been in force. In the Anderson Case it appears that T. W. Anderson was near Hutchins at the Dallas county poor farm serving a sentence imposed for some misdemeanor; that his family resided in the city of Dallas; that his minor son, S. E. Anderson, and the constable in the city of Dallas, wired the manager of the poor farm at Hutchins of the death of one of T. W. Anderson's children and to release him from custody. Neither of these telegrams were delivered to him until the following day, and as the result of such negligence he did not reach Dallas in time to attend the funeral of his child. The suit was filed by T. W. Anderson, joined by his minor son, S. E. Anderson. The decision is by Garrett, presiding justice of the commissioners of the Supreme Court, in which it is said:

"There was no error in sustaining the defendant's plea of misjoinder of parties and causes of action. It is doubtful if any cause of action at all is shown in behalf of the son, S. E. Anderson; but the petition does show a good cause of action in favor of the father. At least, they could not be joined."

The report of the case does not set out the appellant's pleadings, but we may reasonably infer that the father claimed damages for being deprived of the privilege of attending his child's funeral. No such claim could have been made by his minor son, who it appears from a perusal of the case was in Dallas, and, under the facts shown, the holding is correct. The facts in the instant case are altogether different. The brother of the appellees, as their agent, sent the telegram for their benefit. The consideration paid the company for its transmission was paid for their benefit. The failure to deliver the telegram, considered in connection with the telegram itself, is their cause of action. H. & T. C. Ry. Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Westinghouse Elec. & Mfg. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; Planters' Cotton Oil Co. v. Whitesboro Cotton Oil Co., 146 S. W. 225. The damages claimed by each is for mental anguish, growing out of the same transaction or rather cause of action. In Western Union Telegraph Co. v. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982, the father alone sued for damages for mental anguish to himself and his wife because of the negligence of the company in the transmission of a telegram announcing that their son was dying in a distant town. Since any recovery by the wife would be community property, the husband was permitted to recover for the sufferings of his wife in the same action in which he sought to recover damages for his own mental anguish. To the same effect is the holding of Judge Finley in Southwestern Telegraph Co. v. Dale, 27 S. W. 1059, in which it is said:

"Where damages to both husband and wife arises upon the same acts or transaction, recovery of damages sustained by each of them may be had in the same suit."

The case of Western Union Telegraph Co. v. Burris and Wife, 147 S. W. 1173, is one in which the suit is filed by both husband and wife, and in which there was a joint recovery because of nervous shock and physical breakdown on the part of the wife, occasioned by the failure of the company to promptly deliver a telegram sent by the wife to the husband announcing the serious illness of their daughter. The general rule is that the party for whose benefit the telegram is sent may maintain the action. Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Western Union Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896. It is further held in the last-named case:

"That mental anguish, whether accompanied by injury to the person or not, is a proper element of actual damages; and, when caused by the negligence of the telegraph company in failing to deliver a message, compensation therefor may be recovered by the injured party."

The form of such action is in this state ex contractu rather than ex delicto. El Paso & Northeastern Ry. Co. v. Sawyer, 54 Tex. Civ. App. 387, 119 S. W. 110; Potts v. Western Union, 82 Tex. 545, 18 S. W. 604. In Dunn v. Smith, 74 S. W. 576, it appears that one Harry Smith died of smallpox in the pesthouse of Dallas county; his mother, brothers, and sister contracted with J. E. Dunn & Co., undertakers, to inter the body; that the relatives of the deceased went to the appellant's undertaking establishment, selected a coffin, with glass front, silver handles, etc., at an agreed price of $25, and selected a burial robe at the price of $3, to be delivered at the pesthouse that night; that appellant, instead of delivering the coffin and robe purchased, delivered a cheap pine box coffin and no robe at all; and it is alleged that the box was too small to contain the remains, and that in an effort to crowd the body into the box a portion of...